Citation Nr: 1708327
Decision Date: 03/17/17 Archive Date: 04/03/17
DOCKET NO. 98-10 354 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to service connection for a gastrointestinal (GI) disability, claimed as irritable bowel syndrome (IBS), to include as due to undiagnosed illness or medically unexplained chronic multisymptom illness as a result of Persian Gulf War service, or as secondary to service-connected disability.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady, Attorney-at-Law
ATTORNEY FOR THE BOARD
L. Zobrist, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from September 1988 to September 1991.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen a previously denied claim for IBS. It was previously before the Board in March 2009, when it was remanded by another Veterans Law Judge (VLJ) for additional development, and November 2012, when the matter was reopened and remanded for development on the merits. The matter was reassigned to the undersigned and remanded in June 2016 for additional development. (The June 2016 Board decision also denied entitlement to service connection for carpal tunnel syndrome and thoracic outlet syndrome. Those matters were not appealed further; they are no longer before the Board.)
Claims must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As is explained in more detail in the Remand discussion, below, the precise nature of the claimed GI disability is not clear; it has been recharacterized accordingly.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board sincerely regrets the additional delay and acknowledges that this matter has been pending on appeal since 1998. However, as explained in more detail below, additional development is required to comply with the Board's prior remand instructions and reconcile conflicting evidence of record.
On December 2015 VA examination, the examiner, a nurse practitioner, opined, without explanation, that the Veteran "was never diagnosed with irritable bowel syndrome by a medical provider qualified to make this diagnosis" (emphasis added) and that there were no other GI diagnoses of record. On July 2016 VA examination by another nurse practitioner, the examiner opined that there was no diagnosis or complaints of chronic diarrhea, or any other chronic intestinal condition, in the record. Both opinions appear to be in conflict with the medical record, without providing sufficient rationale to reconcile such conflict.
A January 1999 VA examination report includes a diagnosis of IBS. The examiner's identity is not clear; however, there is no indication that the examiner was unqualified to make such diagnosis, and the December 2015 VA examiner did not provide a rationale for his conclusion that the January 1999 examiner lacked the required expertise.
As for the July 2016 VA examiner's opinion regarding evidence of chronic disability, VA treatment records note numerous complaints of GI symptoms. (See, e.g., February 1998 (endorsing loose stools); September 2000 (endorsing frequent diarrhea); March 2001 (endorsing diarrhea); February 2003 (endorsing stomach discomfort and food intolerances). A September 2004 "buddy letter" includes testimony that the author has witnessed the Veteran complaining frequently about his stomach. On January 2005 VA fibromyalgia examination, the examiner included IBS as a symptom warranting a diagnosis of fibromyalgia. Furthermore, on February 2007 VA fibromyalgia examination, the Veteran reported that use of prescribed medication had improved his GI symptoms; VA prescription records indicate that he takes omeprazole to "lower stomach acid.) On December 2011 VA general medicine examination, he reported experiencing diarrhea three times per week.
Notably, review of the record indicates that the Veteran's GI complaints may be related to medication taken to treat service-connected disabilities (see, e.g., February and May 2000 VA treatment records (noting that medication taken to treat service-connected psychiatric disability and pain associated with service-connected fibromyalgia caused stomach distress)). Additionally, the Veteran's attorney has expressly raised the issue as to whether the Veteran has a GI disability related to his Gulf War service (either as an undiagnosed illness or a medically unexplained chronic multisymptom illness.) (See, e.g., January 2012 correspondence.)
The December 2015 and July 2016 VA examinations provided negative nexus opinions premised on findings of no diagnosed IBS or chronic GI disability, without addressing the evidence, some of which is listed above, suggesting otherwise. As such, they are inadequate to adjudicate the claim and not in compliance with the instructions provided in the Board's prior remands. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, although the Board regrets the additional delay, this remand for corrective action is required.
The Board notes that the Veteran appears to be receiving on-going treatment (to include use of prescribed medication) for the disability at issue. Records of such treatment are clearly pertinent (and may be critical) evidence in a claim for service connection and must be obtained on remand. The Board notes that records of VA treatment are constructively of record.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should obtain for the record all records of VA evaluations and treatment the Veteran has received for GI disability (that are not already associated with the claims file.) The AOJ should also ask him to provide releases for VA to obtain records of any pertinent private treatment. The AOJ should obtain complete records from the providers identified. If any records sought are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received.
2. After the record is determined to be complete, the AOJ should arrange for the Veteran to be examined by a gastroenterologist to determine the nature and likely cause of any GI symptoms, to specifically include consideration of IBS and chronic diarrhea. The entire record must be reviewed by the examiner in conjunction with the examination, and all diagnostic tests or studies deemed necessary must be completed. Based on this review and examination of the Veteran, the examiner should provide responses to the following:
(a) Please identify, by medical diagnosis, any GI disability found.
(b) For each GI disability diagnosed, please indicate whether it is at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's military service or to service-connected disability.
The examiner MUST explain the rationale and reasoning for all opinions and conclusions provided, with reference to supporting clinical data. The opinion must address: (1) September 1991 and July 1990 service treatment records (noting reports of diarrhea and stomach pain); (2) the Veteran's lay reports of chronic GI symptoms (to include diarrhea, stomach cramping, and food intolerance) beginning during active service; (3) the September 2004 "buddy letter" noting the Veteran's frequent complaints of stomach troubles; and (4) prior examination reports and treatment records attributing the Veteran's GI complaints to prescribed medications or as a symptom of his fibromyalgia.
(c) The opinion MUST also address whether the claimed disability can be linked to an undiagnosed illness OR medically unexplained chronic multisymptom illness resulting from the Veteran's Gulf War service.
If the requested opinion cannot be provided without resort to speculation, the examiner should so state AND must explain why an opinion cannot be provided without resort to speculation, to include whether an opinion is beyond what may reasonably be found (based on the evidence of record and current medical knowledge).
3. Then, the AOJ should review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney opportunity to respond. The case should then be returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).